About Angela Ainsley

Angela graduated with Honours in both English law and Scots law from the University of Dundee in 2012 before studying the Diploma in Legal Practice at the University of Glasgow later that year. She started her traineeship with a busy city centre litigation firm, dealing with a variety of Sheriff Court and Court of Session actions. Angela joined Mitchells Roberton in March 2015 and is now assisting in our Civil Court Department, expanding her expertise in this field. Angela has previously worked as a horse riding instructor and enjoys all things equestrian. She also loves to travel and is a keen amateur cook after watching one too many episodes of Master Chef.

Sorry May No Longer Be The Hardest Word

Over 35 states in the USA and many other countries around the world including Australia, Canada and New Zealand have successfully implemented effective apologies legislation. It is now the turn of Scotland.

The Apologies (Scotland) Bill was first proposed as a member’s bill in the Scottish Parliament by Margaret Mitchell MSP. The bill proposes that except in the case of fatal accident enquiries and actions of defamation, if an apology is made which contains an “express or implied admission of fault” this apology cannot be led as evidence in civil proceedings. The over-riding aim of the bill is to encourage apologies enabling wronged parties to gain closure and move on, without raising court action thus easing the administrative burden of the time and cost of litigation.

As a solicitor I wish I had a penny for every time I have heard the words “It’s the point of principle” or “It’s not about the money” but perhaps these statements should not be treated with cynicism but with the recognition that the use of apologies may in fact offer an opportunity to avoid the adversarial system.

Indeed the efficacy of an apology should not be underrated. Jennifer Robbennolt Professor of Law and Psychology , University of Illinois noted that “contemporary empirical research has…generally found that apologies influence claimants’ perceptions, judgements and decisions in ways that are likely to make settlements more likely- for example, altering the perceptions of the dispute and the disputants, decreasing negative emotion, improving expectations about the future conduct and relationship of the parties, changing negotiation aspirations and fairness judgements, and increasing willingness to accept an offer of settlement.”

But what is the definition of an apology? The proposal is that to benefit from “the immunity” an apology should contain three elements:

  • An acknowledgement that there has been a wrong doing
  • An expression of regret, sorrow or sympathy for the wrong doing
  • A recognition of direct or indirect responsibility for the wrong doing

I have mixed feelings about the introduction of this bill. I see it more of a clarification of the current law rather than a change. At the moment in Scotland an apology itself will not amount to an admission of liability, as liability is a legal conclusion drawn by the courts taking all evidence into account. Also I wonder if an apology expressed in such a formulaic way will genuinely provide closure for a wronged party. When this bill is passed it may be possible for parties to make admissions in the knowledge that if they parcel these admissions up in an apology these cannot be used in a civil court. Is that a genuine apology?

That said I recognise that there is huge pressure in Scotland for example on the NHS. The increase in compensation claims made by the NHS is staggering. Payments I understand have risen from £1.6 million in 2000-20001 to £58.24 million in 2010-2011 and these figures are only the tip of the iceberg if you think of the cost of out of court settlements, lawyers’ fees and other costs representing a major hidden drain of NHS funding so something has to be done.

The Apologies ( Scotland) Bill hopes to help the situation and I for one will keep an open mind. However as Margaret Mitchell herself admits “you cannot legislate to make people empathise.”

If I can help in any matters of dispute resolution please contact me Angela Ainsley by telephoning 0141-552-3422 or by emailing aja@mitchells-roberton.co.uk

E-Cigarettes In The Work Place

Action on Smoking and Health (ASH) in May 2015 estimated that 2.6 million adults in Great Britain currently use electronic cigarettes. Of these, approximately 1.1 million are ex-smokers while 1.5 million continue to use tobacco, alongside their electronic cigarette use. Yet electronic cigarettes are not subject to the ban on smoking in the work place introduced in Scotland in 2006, which only relates to lit substances.

E-cigarettes in the work place therefore pose a difficult question for UK employers. Should you treat them as if they are cigarettes or have different rules for their use?

I would advise all employers that it is crucial that they review their smoking policies for two important reasons.

Firstly employers must consider the health risks. E-cigarettes are indeed considered less harmful than conventional tobacco cigarettes and are used by some to help them quit smoking. However the health effects of e-cigarettes and passive “e-smoking” are not fully understood. There still remain question marks over the safety of second hand vapour which will certainly contain traces of nicotine and other toxic substances. Permitting e-smoking  in the work place may create the potential for future unwanted claims.

Secondly businesses must take note of a warning following the first employment tribunal case in the UK involving the use of e-cigarettes. The case focuses on a school catering assistant who was seen using an e-cigarette in full view of pupils. The headteacher reported the incident as smoking was not allowed on the premises. A disciplinary hearing was arranged but before it took place the catering assistant resigned claiming she had been constructively dismissed. The tribunal dismissed the claim but it indicated that if her employers had attempted to dismiss her on the grounds of gross misconduct, they would have faced the risk of a successful unfair dismissal claim as their smoking policy did not state that the use of e-cigarettes was prohibited.

It is clear that employers cannot rely on the legislation or their own policies that prohibit smoking to control the use of electronic cigarettes in the workplace and employers who decide that e-cigarettes should not be permitted must amend their non-smoking policies accordingly.

If I can help preparing an appropriate smoking policy for you or answer any questions please contact me by email Angela@mitchells-roberton.co.uk or by telephone 0141-552-3422.